Facts of the case

Jose Lopez, a Mexican national living in South Dakota, was convicted of aiding and abetting the possession of cocaine. The crime is a felony under South Dakota law, but only a misdemeanor under the federal Controlled Substances Act.

The Immigration and Naturalization Service began proceedings to remove Lopez from the country. Lopez applied for a cancellation of his removal, citing the Immigration and Naturalization Act (INA). The INA allows an alien to avoid removal if he meets certain qualifications and has no prior "aggravated felony" convictions. Lopez argued that he was eligible for cancellation of his removal because his drug offense was only a misdemeanor under federal law.

An Immigration Judge denied Lopez's request for cancellation, and the Board of Immigration Appeals affirmed, on the grounds that Lopez had committed an aggravated felony. Lopez then sued the Attorney General and brought his case to the Court of Appeals for the Eighth Circuit. The Circuit Court affirmed the lower courts, ruling that a crime is an aggravated felony under the INA if it is a felony under either federal or state law.

Question

Does a drug crime constitute an "aggravated felony" under the Immigration and Naturalization Act if the crime is a felony under state law but only a misdemeanor under federal law?

The Clerk:

The Honorable, the Chief Justice, and the Associate Justices of the Supreme Court of the United States.

Oyez, oyez, oyez, all persons having business before the Honorable, the Supreme Court of the United States are admonished to draw near and give their attention for the Court is now sitting.

God save the United States and this Honorable Court.

John G. Roberts, Jr.:

Justice Souter has the opinion in Case 05-547 Lopez versus Gonzalez.

David H. Souter:

This case comes to us on writ of certiorari to the United States Court of Appeals for the Eight Circuit.

The petitioner, Lopez, a legal permanent resident, pleaded guilty in a state court in South Dakota to aiding another person's possession of cocaine which the state treats as a felony but which would be a misdemeanor under the Federal Controlled Substances Act.

In deportation proceedings, the Government argued that Lopez state crime was an aggravated felony under the Immigration and Nationality Act and therefore, made him ineligible fro cancellation of removal.

According to the Government, the offense of which Lopez was convicted constitutes the aggravated felony of illicit trafficking, because that term is defined in federal law to include a drug trafficking crime which in turn is defined as any felony punishable under the Controlled Substances Act or under either of two other federal statutes that are in issue here.

Lopez argues that his crime cannot be an aggravated felony because it would be a misdemeanor under federal law.

The Government prevailed before the Board of Immigration Appeals and in the Court of Appeals.

In an opinion filed with the clerk of court today we reverse.

We agree with Lopez that the phrase “felony punishable” under the Controlled Substances Act includes only offenses for which the Controlled Substances Act authorizes felony punishment and does not extend to offenses that a convicting state punishes his felonies but that are treated as misdemeanors under federal law.

We note first the aggravated felony his definition we seek to flash out here is illicit trafficking, a term whose ordinary meaning would include only commercial dealings in drugs not -- not simple drug possession.

The Controlled Substances Act punishes most trafficking offenses as felonies and most possession offenses as misdemeanors, while on numerous states including South Dakota deviate from this pattern.

It does appear more natural to count only federal felonies and not state felonies as illicit trafficking.

Second, normal English usage suggests that the phrase “felony punishable under the Controlled Substances Act” includes only offenses punishable as felonies under that federal law.

We read the words in context and would not normally construe the word, “felony” without considering the immediately adjacent phrase “punishable under the Controlled Substances Act.”

We do not find that rule statutory construction to be overcome by the provision in the Immigration and Nationality Act that says that the term “aggravated felony” applies whether the offense and question is in violation of federal or state law.

Under our interpretation, that last provision serves two important functions.

It provides that generically defined aggravated felonies that do not refer to a specific federal statute include both state and federal offenses.

And it confirms that a state offense that includes all the elements of a federal felony qualifies as an aggravated felony.

Finally, reading the statute to include state felonies would allow state determinations about the severity of drug crimes to supplant congressional judgements.

When Congress has taken the trouble to classify offenses as felonies and misdemeanors, we cannot imagine it and for courts to ignore those classifications whenever a state shows the punish you given act more heavily.

Justice Thomas has filed a dissenting opinion in the companion case 05-7664 Toledo-Flores against the United States, our order is that it be dismissed as improvidently granted.